DR. RAJINDER SINGHversusTHE STATE OF PUNJAB AND ORS.

A                            DR. RAJINDER SINGH
                                      v.
                        THE STATE OF PUNJAB AND ORS.

                                  APRIL 11, 2001

B                      [K.T. THOMAS AND R.P. SETHI, JJ.]

          Service L:nv :

          Punjab Civil Medical (State Senice Class I) Rules, 1972-Rules 2(2)
    and 9A-Promotion of respondent as Deputy, Director, Health Services on
c   recommendations of Departmental Promotion Cornmittee based on Govern-
    ment Notification treating Class II service as Class I service-Validity of-
    Held, respondent did not have requisite qualification on relevant date as per
    Rules-Government Notification cannot substitute Se111ice Rules-Promotion
    of respondent set aside with direction for fresh appointment.
D
          Respondent was promoted as Deputy Director (Health Services) on
    the basis of recommendations of Departmental Promotion Committee.
    Appellant filed a Writ Petition before High Court challenging the promo-
    tion on the ground that the respondent did not possess requisite qualifica-
    tions on the relevant date under Rule 9A sub-rule (c) of Punjab Civil
E   Medical (State Service Class I) Rules, 1972 (PCMS Class I). The High
    Court dismissed the Writ Petition relying upon a Government notifica-           -1
    tion dated 9.4.1989 which treated PCMS Class II as Class I.

          Allowing the appeal, the Court

F         HELD : 1.1. At the relevant date when the respondent was recom-
    mended for promotion, he had not completed 10 years of service within the
    meaning of Rule 9A read with Ruic 2(2) of the Punjab Civil Medical (State
    Service Class I) Rules, 1972. As the respondent was not possessing the
    requisite qualifications on the relevant date, he could not be considered for
G   promotion to the post of Deputy Director, Health Services. [1111-A-B]

         1.2. A perusal of notification dated 9.4.1989 clearly indicates that
    Government itself was aware that the two classes of service cannot he
    equated or treated alike without amending the Rules. The Rules have not
    been amended so far. The Departmental Promotion Committee erred in               >-
H   recommending the promotion of the respondent ignoring the Rules and
                                       ll08
                    DR. RAJINDER SINGH v. STATE [SETHI, J.]               1109
    only relying upon a notification. [1111-E-F]                                   A

          1.3. The settled position of law is that no Government Order, Notifi·
    cation or Circular can be a substitute of the statutory Rules framed with
    the authority of law. Following any other course would be disastrous in as
    much as it would deprive the security of tenure and right of equality
    conferred upon the civil servants under the Constitutional scheme. It          B
    would be negating the so far accepted service jurisprudence. The High
    Court was not justified in observing that even without amendment of the
    Rules, the Class II of the Service can be treated as Class I only by way of
    notification. Following such a course amounts to amending the Rules by a
    Government Order and ignoring the mandate of Article 309 of the Consti·        c
    tution. [1111-F-H]

          2. As the respondent was not eligihle for consideration to the post of
    Deputy Director, Health Services the Departmental Promotion Committee
    committed a mistake in recommending the respondent. Hence, the recom-
    mendation of the Committee as also the consequential promotion of the          D
    respondent is set aside and the said post is declared to have fallen vacant
    forthwith. Respondent-State is directed to appoint a fresh Departmental
    Promotion Committee who shall consider the cases of all the eligible offic·
    ers including the appellant and the respondent and recommend for promo-
    tion any of the eligible persons from the service in accordance with the       E
    Service Rules, totally ignoring notification dated 9.4.1989. [1112-A-E)

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2720 of 2001.

          From the Judgment and dated 7.1.1999 of the Punjab and Haryana High
    Court in CWP No. 1328/98.                                                      F

          Ranjit Kr., Sudhir Walia and Mahinder Singh Dahiya for the Appellant.

         TLV Iyer and Anoop Chondhry, R.K. Talwar. Yash Pal Dhingra, Rajeev
    ShaJma and Vinod Shukla for the Respondents.
'                                                                                  G
          The Judgment of the Court was delivered by

          SETHI, J. Leave granted.

        Aggrieved by the recommendations of the Departmental Promotion
    Committee held on 14.1.1998 and consequential promotion of respondent          H
    lllO                      SUPREME COURT REPORTS                  [2001] 2 S.C.R.
A   No.3 as Deputy Director (Health Services), the appellant filed a writ petition
    in the High Court mainly on the ground that the promotee-respondent did not
    possess the requisite qualifications under the Service Rules applicable in the
    case. Relying upon the notification dated 9th April, 1989 which treated PCMS
    Class JI aG PCMS Class I, the high Court dismissed the writ petition observing
    that for the purpose of treating the PCMS Class II as PCMS Class I, there
B
    was no necessity of amending the rules. The High Court, however, held that
    Rule 9A of the Rules applicable in the case provided that for the post of
    Deputy Director, a person should be member of Class I atleast for a period
    of 10 years.

c          It is not disputed that service conditions of the appellant and respondent
    No.3 are governed by the statutory rules made in exercise of the powers
    conferred upon the Government under Article 309 of the Constitution which
    are known as Punjab Civil Medical (State Service Class I) Rules, 1972 (here-
    inafter referred to as "PCMS Class I Rules"). Rule 9 deals with the matters
    of recruitment and provides that recruitment to any post in service excepting
D   the post of Director (Health Services), Joint Director (Health Services) and
    Dy. Director (Health Services) be made in the manner prescribed therein. Rnle
    9A dealing with t11e appointment to the senior posts provides:

             "Appointment to Senivr Posts - No person shall be appointed -

E            (a)   to the post of Director, Health Services, unless he has an
                   experience of working on the post of Joint Director, Health
                   Services for a minin1um of one year.

             (b)   to the post of Joint Director, Health Services, unless he has been
                   a member of service for a minimum period of twelve years
F
                   including two years as Depnty Director, Health Services, and

             (c)   to the post of Deputy Director Health Services, unless he has
                   been a member of the service for a minimum period of ten
                   years."
G
           According to sub-rule (c) of Rule 9A, a person cannot be appointed
    to the post of Deputy Director unless he has been the member of the service
    for a minimum period of 10 years. "Service" has been defined as: "Service
    means the Pubjab Civil Medical (State Service Class !)"

H          It has not been disputed before us that at the relevant date when the
                 DR. RAJINDER SINGH v. STATE [SETHI, J.]                   llll
respondent No.3 was recommended for promotion, he had not completed 10              A
years of service within the meaning of Rule 9A read with Rnle 2(2) of the
PCMS Class I Rules. As the respondent N0.3 was not possessing the requisite
qualifications on the relevant date, he could not be considered for promotion
to the post of Deputy Director, Health Services.

       We do not agree with the High Court that even without amending the           B
rules, the respondent-State could have declared the PCMS Class II as PCMS
Class I. The notification dated 9th April, 1989 reads as:

        "In pursuance of the recommendations of the Committee for
        the removal of anomalies in the Revised Scales of pay of Punjab
        Civil Medical Services, the President of India is pleased to declare        c
        the PCMS (Class II) as PCMS (Class I). There will be only one
        service with the nomenclature of PCMS (Class I) with effect from
        1.1.1986.

         The necessary amendments in the service rules of PCMS (Class II)
                                                                                    D
         and PCMS (Class I) will be made separately.

         This issue with the concmTence of the Finance Department conveyed
         vide their l.D. No.10/27/89-FPI, dated 20.3.89." (Emphasis Supplied)

A perusal of the notification clearly indicates that the Government itself was
aware that the two classes of service cannot be equated or treated alike
                                                                                    E
without amending the rules. There is no dispute that the rules have not been
amended so far. The Depa1tmental Promotion Committee, therefore, erred in
recommending the promotion of respondent No.3, ignoring the rules and only
relying upon a notification.
                                                                                    F
      The settled position of law is that no Government Order, Notification
or Circular can be a substitute of the statutory" rules framed with the authority
of law. Following any other course would be disastrous inasmuch as it would
deprive the security of tenure and right of equality conferred upon the civil
servants under the constitutional scheme. It would be negating the so far
accepted service jurisprudence. We are of the firm view that the High Court         G
was not justified in observing that even without the amendment of the rules,
the Class II of the service can be treated as Class I only by way of
notification. Following such a course in effect amounts to amending the rules
by a Government Order and ignoring the mandate of Article 309 of the
Comtitution.                                                                        H
                                                                                      y




    1112                     SUPREME COURT REPORTS                 (2001] 2 S.C.R.

A         As respondent N0.3 was not eligible for consideration to the post of
    Deputy Director, Health Services, the Departmental Promotion Committee
    committed a mistake in recommending him. Consequent promotion of re-
    spondent No.3 on the basis of recommendation of the Departtnental Promo-
    tion Committee being contrary to law is liable to be set aside.

B          Learned counsel appearing for both the parties addressed arguments
    regarding the claims and counter claims of the appellant and respondent No.3
    to the post of Deputy Director, Health Services to which the respondent No.3
    is stated to have become eligible by now. We refrain to comment upon such
    submissions in view of the order which we propose to pass in this app~al.
c          Accordingly this appeal is allowed by setting aside the impugned
    judgment. The recommendation of the Departtnental Promotion Committee
    and consequential promotion to the post of Deputy Director, Health Services
    is set aside and the said post of Deputy Director, Health Services in the State
    of Punjab is declared to have fallen vacant foi:thwith. The respondent-State
D   is directed to appoint a fresh Departmental Promotion Committee who shall
    consider the cases of all the eligibl~ officers including the appellant and
    respondent No.3 and recommend for promotion any of the eligible persons
    from the service in accordance with the Service Rules totally ignoring
    notification dated 9th April, 1989.
E          No costs.

    B.S.                                                         Appeal allowed.